A Section 237(a)(1)(H) is a waiver, that, if granted, can permit an immigrant who never would have received a visa if the true facts were known at the time of visa issuance or admission, to remain a permanent resident and eventually apply for citizenship. It is available when an immigrant is before an immigration court.
The purpose of the waiver section was based on the idea of “family reunification.” The waiver applies to those aliens who seek the waiver based on inadmissibility at the time of admission or adjustment of status because of fraud or willful or innocent misrepresentation. It does not apply to an immigrant that entered as a nonimmigrant and never became a permanent resident. The waiver is discretionary.
Since the theme of the waiver is family reunification, the alien must be the spouse, parent or son or daughter of a U.S. citizen or lawful permanent resident. He must be “otherwise admissible” except for the provisions of the statute relating to the requirements for a labor certification and being in possession of an immigrant visa. The underlying ground of inadmissibility must be a direct result of the fraud or misrepresentation. Finally, the alien must have been in possession of an immigrant visa or entry document. An alien who would have been charged with having entered without having been inspected as an alien by an immigration officer is not eligible for relief.
An immigrant is eligible for the waiver, even if he would have been inadmissible based on the “true facts” as long as the ground of inadmissibility directly results from the fraud or misrepresentation. Therefore, aliens who, although married, entered the U.S. as the unmarried son or daughter of a lawful permanent resident or the son or daughter of a lawful permanent resident that died after approval of the visa petition but before the issuance of the visa were eligible to apply for the waiver. An alien that lied about his skills to obtain an alien labor certification would also be eligible, as would an alien who was admitted in spite of perpetrating a “marriage fraud” that would fall under INA section 204(c). An alien who did not obtain a divorce prior to marrying a U.S. citizen and concealed the fact of the first marriage when applying would also be eligible.
A Section 237(a)(1)(H) waiver is discretionary and is a balancing of the equities of the immigrant. If you are in immigration court, do not fight alone or attempt to seek waivers or other relief without legal counsel. Call Baurkot & Baurkot today at (484) 544-0022, or click here to schedule a free, confidential consultation.